"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Wednesday, July 04, 2012

Nothing "great" about Roberts' opinion

Yesterday we returned from a family trip to Disney World. Hadn't been
down there since I took my son in the early '90s. Now we took him, his
wife and two of my grandsons. I'm afraid I've changed more than the
Magic Kingdom. Something in that is humbling.

On the plane down to the Happiest Place on Earth, I wrote this op-ed for the Milwaukee Journal Sentinel. One morning, before trekking the Animal Kingdom, I wrote more about the need - and potential - for a limiting
principle at the Federalist Society's newly launched SCOTUSreport blog where I have been asked to contribute. The point is this. If the limited view of the Commerce power endorsed by the Chief Justice and four other members of the Court
has any meaning, it cannot be so readily undercut by a capacious view
of the taxing authority. The latter needs a limiting principle that the
Chief Justice did not articulate but did suggest.

It is for
this reason that the op-ed in Monday's paper by law professors Vikrim and Akhil Amar
is unpersuasive. I appreciate that it sets forth the conventional
'liberal" view, i.e., that the Chief Justice was somehow "wise" in
deferring to a piece of legislation in which the President had invested
"substantial capital." The authors suggest that he has done something
like Chief Justice Marshall in Marbury v. Madison, asserting the
Court's authority to say what the law is while avoiding a confrontation
with the executive by giving the latter what it wants - for now.

But
there are two problems with this view. The first is that it is not
clear that Roberts has protected the Court's interest. He was able to
avoid a confrontation only by adopting a view of the taxing power that
threatens to undercut his view of the commerce authority and the
constitutional scheme it reflects.

The second is that Marbury
was decided in 1803 and this is 2012. We are well beyond the time in which
the Court's authority to say what the law is was controversial. Rather
than strike a blow for judicial independence, Roberts - in at least
giving the appearance that he took a dive - undercut it. This was not a
step forward for the Court, it was a step back.

Having said that, I do think it's a step too far to castigate Roberts' as a "liberal." I think he got too cute by half but I don't expect him to suddenly become something that he has never been.

Interesting how these authors--those same individuals who touted his judicial restraint--are now throwing Roberts under the bus by claiming he is an activist judge!

Conservatives were steadfast that Roberts does not "actively second-guess and re-do existing law", that he is not "eager to overturn legislation”. And it would appear that is ruling, while seemingly convoluted, is rooted in his judicial restraint philosophy.

And then there are those pundits who believe Roberts is sly as a fox. Perhaps today Obama won a battle, but Roberts has set up Obama to lose the war!

1. The “Court is activist” claim on the part of liberals...poof, gone! No scapegoat for lefties on the health care issue.

3. He upheld the law, on the very narrowest of grounds using past precedent (found below in A-E) remanding political questions to Congress--JUDICIAL RESTRAINT.

4. The coercive powers of the federal government over the states regarding federal monies...nope! JUDICIAL RESTRAINT.

5. Both parties were provided suitable talking points: Democrats have their law they have to defend as a "tax increase".

6. Despite his alleged “partisanship”, he was the only Justice willing to reasonably consider both sides, a Republican appointee overseeing a “right-wing” court, in an attempt to depoliticize the Court.

A. There is precedent for Congress to be involved in health care. Our founding fathers passed "An Act For The Relief Of Sick And Disabled Seamen’ (1798) which authorized a deduction--A TAX?--from the pay of seamen for the purpose of funding their medical care. The founding fathers did not believe this program to be unconstitutional.

B. Medicare, Social Security, and Medicaid are programs which have not been challenged constitutionally. It would appear that these precedents are explicitly based on the reasoning that Congressional spending power is broader than its regulatory power.

C. I think what people cannot get over is Obama refused to call it a “tax” in the political process, even as his lawyers argued it was a “tax” in the litigation process.This situation analogous to two businesses saying PUBLICALLY that they are “partnering” with each other, even though LEGALLY there is no “partnership”. There are numerous examples in law where what the parties say (what Roberts refers to as “labels” in his opinion) that are irrelevant in litigation. Given the amendment on income taxes, and the subsequent federal programs that incorporate "fees" and "surcharges", it is reasonable to make the argument that a "penalty" falls under this category.

D. f I fail to pay adequate quarterly estimates on my income taxes, I will be penalized under the taxing authority of the IRS and Federal government granted by the Constitution, and yet that penalty is not itself a tax. It would be fair to assume that this reasoning was applied to the health care debate.

E. Choose not to pay your income taxes over a period of time = inactivity. The consequence? A penalty. Choose not to purchase health insurance over a period of time = inactivity. The consequence? A penalty. In BOTH cases, the financial penalty possesses the essential feature of any tax producing revenue for the government. Hooper v. California provides the vehicle.

Ultimately, in Roberts opinion, neither the label of "penalty" nor the fact it was intended to influence behavior mattered. Because the Supreme Court's duty is to defer to the elected branches when possible, the mandate must be upheld. That would seem to me is judicial restraint in action.

Again, whether the penalty is or is not a tax is immaterial in this specific case, since it is NOT up to the Supreme Court to judge its validity. That is left up to the legislative branch.

Stated another way...the Supreme Court ruled that the penalty fit the taxing criteria based on past laws. It is the jurisdiction of Congress, not the Supreme Court, to change that criteria.

Perhaps Roberts used "mental gymnastics" as the basis for his ruling, BUT to me he properly deferred to the mess that Congress made in his carefully crafted opinion. As he said, “it is not the job of the Supreme Court to protect people from the consequences of their political choices.”

"The point is this. If the limited view of the Commerce power endorsed by the Chief Justice and four other members of the Court has any meaning, it cannot be so readily undercut by a capacious view of the taxing authority."

I thought the Supreme Court can rule on two separate constitutional issues for the same law.

And it depends upon one's view if the taxing authority is or is not capacious.

"From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishments." -- Sutherland, J., for a unanimous Court, in A. Magnano Co. v. Hamilton, 292 U.S. 40, 47 (1934). That's George Sutherland, one of the Four Horsemen, Republican appointee of President Harding, and one of the most conservative justices ever to sit on the Supreme Court.

You are recommending a "limiting principle" on the power to tax that Justices Sutherland, McReynolds, Van Devanter, and Butler rejected. You are more reactionary than the most reactionary judges who ever sat on the Supreme Court! And the scary thing is, four of the current Supreme Court justices would probably buy your argument.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.